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Published: 2008-03-26

Child Custody in Texas



In Texas, the court (or the parties by agreement) will (1) appoint one spouse as the Sole Managing Conservator of the child/children (the party having custody), and the other party as the Possessory Conservator of the child/children (the party having visitation), or (2) appoint both parents as Joint Managing Conservators of the child/children and then allocate the rights and responsibilities between the parents.

In 1973, Texas adopted the Equal Rights Amendment and specifically provided that in deciding custody cases, the court shall consider "the qualifications of the respective parents without regard to the sex of the parent." Because of the fact that many working couples share the child raising responsibilities before separation, and because custody decisions are made without regard to the sex of the parents, many couples prefer to be Joint Managing Conservators.

If you and your spouse can agree on custody, the court will almost always approve your written agreement. If you and your spouse cannot work out an agreement, the court will decide custody. A custody battle is extremely expensive and destructive.

Many people feel that they should be appointed the Sole Managing Conservator of their children, so that they will have controlling power after divorce, and their spouse will not have any control. That is not realistic. The Legislature has concluded that if both parents are given the ability to act more like parents after divorce, their children will benefit. Accordingly, the Legislature has established a detailed set of rights, powers, privileges and duties for both the Sole Managing Conservator and the Possessory Conservator after divorce. Many people conclude after reviewing the respective rights, powers, privileges, and duties of both the Sole Managing Conservator and the Possessory Conservator that it is not worth fighting to become the Sole Managing Conservator and that their children will be better off if they work out a Joint Managing Conservatorship with their spouse.

Joint Managing Conservator means the sharing of the rights, privileges, duties and powers of a parent by two parties, even if the exclusive power to make certain decisions may be awarded to one party. Joint Managing Conservator does not mean that there will be equal or nearly equal periods of physical possession or access to the child by each parent. Frequently, the primary physical residence of the child is designated.

Many people are against Joint Managing Conservatorships on the grounds that "if they can't get along while married, they can't get along after divorce". In recent years, the trend has been toward Joint Managing Conservatorship. Some people believe that even though two adults no longer desire to be married to each other, they can still work together for the benefit of their children after divorce. It is also frequently stated that the adults get divorced, not the children. If you stop to think about it, children have the right to have two parents after a divorce.

In 1987, the Texas Legislature adopted the following policy:

It is the policy of this state to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents who share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

At the same time, the Legislature provided that even if the parties dispute custody, a judge or a jury may appoint the parties Joint Managing Conservators. I urge my clients to strongly consider Joint Managing Conservatorship.

Texas has now adopted presumptive Joint Managing Conservatorship. The court is required to appoint both parents as Joint Managing Conservators unless it finds that the appointment would significantly impair the child's physical health or emotional development.

I have found that if the parents will take parenting classes while they are separated, they will significantly improve their ability to work together for the best interest of the child. Also, I have found that if parents will jointly take child discipline classes one to three years after the divorce, they will be able to prevent a lot of problems that children often suffer from divorce.

In order for a Joint Managing Conservatorship to work, I have found that it is necessary for the parents to be free of resentment toward each other, be willing to listen to each other, be willing to communicate with each other, be willing to "give," and be willing to work together for the benefit of their children.

ALIMONY

Texas has adopted "rehabilitation alimony." Generally, alimony may be awarded to a spouse if the marriage was of at least 10 years duration and the spouse who is seeking alimony lacks sufficient property to provide for their minimum reasonable needs and:

  1. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
  2. is the custodian of a child with a physical or mental disability that precludes employment outside the home; or
  3. clearly lacks earning ability in the labor market to provide for their minimum reasonable needs.

Generally, alimony is limited to three years. The amount of alimony is limited to the lesser of $2,500 per month or 20% of the obligor's average monthly gross income. Alimony is taxable to the recipient.

If you think that you may be a candidate for alimony, remember the purpose is to rehabilitate the recipient so that person can re-enter the job market.

CHILD SUPPORT

The Texas Legislature also enacted the following child support guidelines:

  • 1 child
  • -
  • 20% of obligor's net resources
  • 2 children
  • -
  • 25% of obligor's net resources
  • 3 children
  • -
  • 30% of obligor's net resources
  • 4 children
  • -
  • 35% of obligor's net resources

If the obligor has children other than those involved in the current divorce, special guidelines apply, taking into account all of the obligor's children.

The definition of net resources is quite long --- for most people, it means all wage and salary income and other compensation for personal services, interest, dividends, royalty income, self-employment income and net rental income, less social security taxes and federal income tax withholding for a single person claiming one personal exemption and the standard deduction. The guidelines apply automatically to the first $6,000.00 of net resources per month. When net resources are above $6,000.00 per month, the court has discretion to set additional child support, based on the needs of the child. The lifestyle of the recipient of child support is not a factor in determining the amount of child support.

Except in very unusual situations, child support is now paid by wage withholding from the obligor's employer.

You should note that the child support guidelines apply equally to men and women.

VISITATION

The Texas Legislature has considered the importance of parental involvement in child development and established minimum imitation schedules for Texas. A partial listing of the schedule is set forth below:

Weekends - beginning at 6:00 p.m. on the first, third and fifth Fridays of each month and ending at 6:00 p.m. on Sunday; Wednesday of each week during the regular school term beginning at 6:00 p.m. and ending at 8:00 p.m. ;

Christmas - in even-numbered years beginning at 6:00 p.m. on the last school day before the Christmas school vacation begins and ending at noon on December 26; Christmas - in odd-numbered years beginning at noon on December 26 and ending at 6:00 p.m. on the day before school resumes;

Thanksgiving - in odd-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for Thanksgiving and ending at 6:00 p.m. on the following Sunday;

Spring Break - in even-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for spring vacation and ending at 6:00 p.m. on the day before school resumes;

Summer - thirty (30) days to be exercised in no more than two (2) separate periods of at least seven (7) consecutive days;

Child's birthday - from 6:00 p.m. to 8:00 p.m.;

Mother's Day/Father's Day weekend - from 6:00 p.m. Friday to 6:00 p.m. Sunday;

If the visiting parent and the child reside more than 100 miles apart, the visiting parent gets every Spring Break, forty-two (42) days during the summer and the choice of the standard weekends or any weekend selected by the visiting parent.

Also, on the Friday and Wednesday visitation, the court may permit the visiting parent to pickup the child at the time the child's school is regularly dismissed.

It is well recognized that frequent contact after divorce between a child and each parent optimizes the development of a close and continuing relationship between each parent and the child. Of course, such frequent contact can be hindered if one parent moves after divorce. If the primary parent moves out of the county after divorce, then the primary parent is required to pick up the child at the end of the other parent's period of possession, at the other parent's residence.

These guidelines apply to children over three (3) years of age. Some of the Judges are applying the guidelines to children under three (3) years of age and other Judges are not. There are many other provisions of the guidelines not outlined above.